Riddle Me This

[tgrayson]

IMO, this is one of the true "gray areas" in the FAR.

Not really. Private carriage is carriage for compensation or hire of a limited set of customers and requires an operating certificate. The interpretation quote says that if it's a small airplane, then Part 135 applies.


Furthermore, from the regs,

§ 119.5 Certifications, authorizations, and prohibitions.​

(b) A person who is not authorized to conduct direct air carrier operations, but who is authorized by the Administrator to conduct operations as a U.S. commercial operator, will be issued an Operating Certificate.​

And a commercial operator, from Part 1 is

Commercial operator means a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property, other than as an air carrier or foreign air carrier or under the authority of Part 375 of this title. Where it is doubtful that an operation is for “compensation or hire”, the test applied is whether the carriage by air is merely incidental to the person's other business or is, in itself, a major enterprise for profit.​

 

[MidlifeFlyer]

I told you you piqued my curiosity. I still have some touble with the concept, given all the "grey charter" cases that go into a "holding out" analysis - why bother if it makes no difference whether they were holding out or not?

But, in addiiton to your 1988 Opinion, I found one from 1992 (I don't know what the reg said at the time) involving a company that sells vehicles. It plans to rent an airplane from a flight school (we're obviously not talking about Part 125 aircraft) to transport its own employees to pick up the cars. In the course of saying it's okay, the Opinion goes on,

==============================
I would caution you against allowing this arrangement to evolve into a de facto operation of private carriage for hire. This would occur if you, in fact, put together the transportation package consisting of aircraft and pilot services and received payment for the operation of the flights, even if the clientele was limited to one customer. This would require a commercial operator certificate.
==============================

I'm not completely satisfied for my own purposes yet, but thanks for bringing this to my attention.

 

[Sidious]

I still have some touble with the concept, given all the "grey charter" cases that go into a "holding out" analysis - why bother if it makes no difference whether they were holding out or not?

Exactly! Why have this differentiation if I must get a Part 135 operating certificate no matter if it is Private or Common!

 

[tgrayson]

I still have some touble with the concept, given all the "grey charter" cases that go into a "holding out" analysis - why bother if it makes no difference whether they were holding out or not?

I think the main difference is whether you will be a "Commercial Operator" or "Air Carrier".

 

[Sidious]

I think the main difference is whether you will be a "Commercial Operator" or "Air Carrier".

Okay so common carriage would be "Air Carrier" but when could you operate Part 91 as private carriage? Given what has been said about 119.23

 

[tgrayson]

Okay so common carriage would be "Air Carrier" but when could you operate Part 91 as private carriage? Given what has been said about 119.23

There are some exemptions in 91.500 or something.

I don't think that your being paid to fly someone else's airplane is carriage of any sort, unless they start charging people for rides. But anytime you supply an airplane and your services, you're a commercial operator.

 

[MidlifeFlyer]

I think the main difference is whether you will be a "Commercial Operator" or "Air Carrier".

Not in those cases. They deal with a 135 v 91 issue, not a 135 private v 135 common issue.

I don't think that your being paid to fly someone else's airplane is carriage of any sort, unless they start charging people for rides.

We can definitely agree on that.

 

[tgrayson]

Not in those cases. They deal with a 135 v 91 issue, not a 135 private v 135 common issue.
We can definitely agree on that.

Can you supply a specific reference so we can look at the same thing?

 

[MidlifeFlyer]

Can you supply a specific reference so we can look at the same thing?

I can go through my database but I'm not sure we need to. The more I look at the issue, the more I think you are absolutely right.

 

[exleardriver]

Okay so common carriage would be "Air Carrier" but when could you operate Part 91 as private carriage? Given what has been said about 119.23

as posted before from ac 120-12a:

d. Carriage for hire which does not involve "holding out" is private
carriage. Private carriers for hire are sometimes called "contract carriers," but
the term is borrowed from the Interstate Commerce Act and legally inaccurate when I*
used in connection with the Federal Aviation Act. Private carriage for hire is
carriage for one or several selected customers , generally on a long-term basis.
The number of contracts must not be too great, otherwise it implies a willingness
to make a contract with anybody. A carrier operating pursuant to 18 to 24
contracts has been held to be a common carrier because it held itself out to serve
the public generally to the extent of its facilities. Private carriage'has -been '
found in cases where three contracts have been the sole basis of the operator's
business. Special adaptation of the transportation service to the individual L
needs of shippers is a factor tending to establish private carriage but is not
necessarily conclusive.

and from my following post as an example:

at any rate, although isn't all that common, at least in my region, it has been successfully done. it's best to have a close relationship with your local fsdo, as you can be sure they're going to be keeping a close eye on such operations for signs that it could be beginning to hold out to the public. you'll need an atco certificate for that. a decade ago, i helped a man assemble an ops manual, specs, etc. for a single-pilot part 135 atco certificate. his manual was approved and he was given a checkride after my ground/flight training by his assigned fsdo inspector. he operated a piper seneca. eventually, after about 4 years, he dropped the certificate and continued to only do work for 2-3 clients. you could no longer call him up for a charter flight.

the faa (read: local fsdo's) don't, in my opinion, go around 'promoting' this practice, but have been permitting it for quite some time..at least locally. perhaps other fsdo inspectors interpret this legality different. this is my experience in the past fifteen years, and i have a close relationship with our local fsdo. i do acquiesce that one doesn't find it spelled out anywhere in the regs - 'do this'. :bandit: